516 F.

2d 288

UNITED STATES of America, Appellee,

v.
Anthony Thomas CAMPANILE and William Monks,
Appellants.
Nos. 764, 765, Dockets 74-2160, 74-2320.

United States Court of Appeals,

Second Circuit.
Argued March 14, 1975.
Decided April 24, 1975.

Richard C. Blum, Burlington, Vt., for appellant Monks.

J. William O'Brien, Burlington, Vt., for appellant Campanile.
Jerome F. O'Neill, Asst. U. S. Atty. (George W. F. Cook, U. S. Atty. for
the District of Vermont, on the brief), for appellee.
Before LUMBARD, MOORE and FEINBERG, Circuit Judges.
FEINBERG, Circuit Judge:

Anthony Thomas Campanile and William Monks appeal from judgments of

conviction entered after a nine-day jury trial in the United States District Court
for the District of Vermont, Albert W. Coffrin, J. Each was found guilty on two
counts of violating 18 U.S.C. 2, 2113(b), theft from a federally insured bank,
and sentenced to eight years in prison. We affirm the judgments of conviction.

I.
2

The case was unusual because there were no eyewitnesses to the bank thefts,
which were done at night, but there was little question about the presence of
appellants, strangers to northern Vermont, in the area at the crucial times. From
the evidence before the jury some of which appellants argue was improperly
admitted the jury could reasonably have found the following: In May 1973,
pursuant to a plan to rob banks, Campanile and Monks stole a van in New

Jersey, switched license plates with another vehicle, and drove to Vermont the
next day. Having trouble with the shift linkage on the van, they were forced to
seek assistance from residents of Enosburg Falls, Vt. After tinkering with it for
a while, they gave up, went to the American Legion Hall for a few beers, and
stayed until closing time. Later that evening they returned to the Hall, pried
open a door, and took approximately $300 (including $75 in singles) and
several cartons of cigarettes. Blue paint was found in the pry marks on the door,
and a coin box that had not been used for years was forced open by the robbers.
3

That same night appellants broke into the Howard Bank of Enosburg Falls.
They again gained entry by forcing open a door. Blue paint was found in the
pry marks, and once more the evidence indicated that strangers to the area
committed the break-in several outer doors were broken into before the door
leading to the bank was located. This time, approximately $900 in coins was
taken from locked tellers' vaults. Campanile and Monks then drove to Milton,
Vt., where they opened a window in the Franklin Bank and stole approximately
$1,300 in coins from tellers' vaults. A resident of the town spotted lights in a lot
near the bank at about 4:00 A.M. that morning. A half hour later, two
policemen noticed Campanile in the stolen van as it drove slowly south through
Essex Junction, Vt., away from Milton and the Franklin Bank.

At 9:30 A.M. that morning, Campanile and Monks drove into a gas station in
St. Johnsbury, Vt., with the still malfunctioning van. They asked that it be
repaired and left a deposit of $20 in singles. They also arranged with two local
teenagers for a lift back to New Jersey. The two young men were paid $100 for
the trip; $40 was in single bills. Appellants insisted on loading the hired
automobile themselves; although the car had heavy duty shock absorbers, it
rode significantly lower after appellants loaded it. During the trip, Campanile
and Monks used the names Joe and Bob. Campanile was dropped off in front of
what he said was his brother's house in Paterson, N. J., where he and Monks'
insisted upon unloading the car themselves. Monks was then driven to a nearby
location. 1

II.
5

Both defendants raise a variety of points. We will treat Campanile's first. He

was arrested on August 17, 1973, by the New York City police on state
charges. Approximately 20 hours later, he was transferred to federal custody for
questioning on a charge of interstate transportation of a stolen motor vehicle.
Shortly thereafter, he stated that he had stolen the van and gone to Vermont to
"line up robberies." He admitted taking a Luger handgun with him. On appeal,
Campanile argues that these statements should not have been admitted into

evidence under 18 U.S.C. 3501. In particular, he states that his "confession"

was automatically involuntary under section 3501(c) because the combined
federal-state detention prior to his appearance before a federal magistrate
exceeded six hours, plus a reasonable allowance for transportation time, and his
confession was made more than six hours after his arrest. Appellant apparently
did not make this specific argument below, and we might well refuse to deal
with it on that ground alone. However, since the issue of voluntariness was the
subject of a suppression hearing, we will consider this specific, as well as the
more general, claim.
6

While we question whether it is proper to add the time spent in state custody to
the federal period in this case, see United States v. Johnson, 467 F.2d 630, 637
(2d Cir. 1972), cert. denied, 410 U.S. 932,93 S.Ct. 963, 35 L.Ed.2d 270, 413
U.S. 920, 93 S.Ct. 3069, 37 L.Ed.2d 1042 (1973); but see United States v.
Halbert, 436 F.2d 1226, 1232 (9th Cir. 1970); cf. United States v. Chadwick,
415 F.2d 167, 171 (10th Cir. 1969), we need not resolve the issue here.
Violation of the six-hour rule does not automatically make a confession
involuntary; rather, it is only one of the many factors to be considered in
making that determination. United States v. Johnson, supra. The FBI agent who
interrogated Campanile stated that prior to federal questioning the defendant
was fully apprised of his rights and waived them. While Campanile testified at
the voluntariness hearing that at the time of questioning he was going through
narcotic withdrawal, the agent testified that he noticed no signs of distress and
that, on the contrary, Campanile seemed "very jovial." In light of this evidence,
we are not persuaded that Judge Coffrin's finding of voluntariness was clearly
erroneous; in fact, we believe it was correct. See United States v. Stone, 472
F.2d 909, 913 (5th Cir. 1973).

Campanile also argues that evidence seized pursuant to a warrant from his
brother Michael's apartment in Paterson should have been suppressed. After a
suppression hearing, at which it was revealed that the apartment was originally
leased to defendant (Anthony Campanile) and then subleased by his brother,
the court ruled that defendant lacked standing to challenge the search. Not only
was the apartment lease still in defendant's name, but also there was evidence
that he occasionally stayed at the apartment, still received mail there, and
sometimes stored things there with his brother. The standing issue, therefore, is
not so easily resolved. In addition, defendant was clearly the object of the
search and as such may have standing on that ground alone. See United States
v. Mapp, 476 F.2d 67, 71 (2d Cir. 1973). Thus, rather than decide the issue of
standing, we will treat the merits of the suppression motion itself, cf. United
States v. Cangiano, 491 F.2d 906, 912 (2d Cir.), cert. denied, 419 U.S. 904, 95
S.Ct. 188, 42 L.Ed.2d 149 (1974), and deal with the various arguments

Campanile either made in the trial court or to us at oral argument.2

8

Here there was no question that there was sufficient cause to issue the warrant.
The two teenagers who drove appellants to New Jersey led the police back to
the apartment less than a week later. At oral argument, Campanile made much
of the statement in the warrant that it was for the "only basement" apartment at
the Paterson address, although the evidence at trial indicated that there may
have been two basement apartments. But the police searched only the apartment
lived in by defendant's brother, which was the one described in the affidavit that
supported the warrant. We do not think this slight variance is enough to make
the warrant void on its face, particularly when the agents clearly knew which
apartment they were to search. See Steel v. United States, 267 U.S. 498, 503,
45 S.Ct. 414, 69 L.Ed. 757 (1925); United States v. DePugh, 452 F.2d 915, 920
(10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805
(1972). When the agents searched the apartment they found, in addition to
items listed in the warrant, cartons of cigarettes bearing Vermont tax stamps
and a black case heavy enough to contain rolled coins. When the case was
opened, it was found to contain a Luger which was owned, according to
Michael Campanile, by his brother Anthony. Since the defendant was known to
be a felon, the Luger was clearly contraband. Under the rationale of Coolidge v.
New Hampshire, 403 U.S. 443, 465-72, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971),
the cigarettes and Luger were subject to seizure both as evidence discovered by
chance in the course of a lawful search, and as stolen goods or contraband. See
also United States v. Pacelli, 470 F.2d 67, 70-72 (2d Cir. 1972), cert. denied,
410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973).

Other items, such as coin wrappers and cleaning equipment that was in the van
when stolen, were also discovered during the search but not in the Campanile
apartment. Rather, they were found in the trash cans and common areas of the
apartment building. Since the superintendent of the building had consented to
the search of those areas, seizure of these items was clearly proper.

10

Campanile also argues that admission into evidence of the Luger and
equipment found with it was erroneous because these items had no relevance to
the crimes charged nonviolent bank thefts at night. Following his arrest,
Campanile admitted that he took the gun with him and, while it was not used,
having it along would appear to be a form of criminal insurance for the success
of the venture. Thus it was probative of intent. But we do think this evidence
was on the borderline of admissibility in view of its tendency to create unfair
prejudice. Compare United States v. Baker, 419 F.2d 83, 86-87 (2d Cir. 1969),
cert. denied, 397 U.S. 971, 976, 90 S.Ct. 1086, 25 L.Ed.2d 265 (1970).
Nonetheless, "the trial judge has wide discretion in this area," United States v.

Ravich, 421 F.2d 1196, 1204-05 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct.
69, 27 L.Ed.2d 66 (1970), and it was not abused here.
11

Campanile also vigorously objects to the admission of testimony by Shirley

Brown, a friend of defendant Monks. Ms. Brown testifed that Monks told her in
mid-1972 that he and Campanile were going to rob a bank in suburban New
Jersey. Campanile objected on the grounds of hearsay but the statement was
admitted anyway. On appeal, Campanile claims that the testimony also violated
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
The point was not raised below. The Government argues that the statement was
admissible under the co-conspirator's exception to the hearsay rule, and, if not,
that its admission was harmless error. We fail to see how the co-conspirator
rule applies. The statement was made approximately nine months before the
crimes charged here, and there is no other evidence of a conspiracy at the
earlier time. The Government's second point is valid, however. By the time Ms.
Brown testified, the jury had already been told that Campanile had admitted,
after his arrest, that he had gone to Vermont to line up robberies. Thus, the
Brown testimony that Campanile was considering robbing a bank in 1972 was
surplusage as proof that he intended to rob banks in Vermont in 1973. See
Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208
(1973).

12

The final point made by Campanile is that evidence linking appellants to the
American Legion break-in should not have been admitted. The rule in this
circuit is "that evidence of other crimes is admissible except when offered
solely to prove criminal character." United States v. Gerry, 515 F.2d 130, 141
(2d Cir. 1975). This evidence was properly admitted since it tended to show
that whoever committed the American Legion theft also broke into the two
banks. The Legion Hall was located a short distance from one of the banks
robbed the same night. Both were broken into by persons unfamiliar with the
premises. In both cases, entry was accomplished by prying a door open, and the
instrument used left similar paint marks at both locations. Cigarettes were taken
from the Legion, and the defendants told the two boys who drove them back to
New Jersey that they had plenty of cigarettes. Cigarette packs of the same brand
stolen in Vermont and with Vermont tax stamps were also found in the
apartment Campanile sublet to his brother. Moreover, 75 one-dollar bills were
taken from the American Legion, and defendants were shown to have paid
various persons over $60 in one-dollar bills on the day they returned to New
Jersey. All of this was sufficient to justify an inference that defendants were
connected with all the unusual events of the night. Evidence tending to show
that the defendants committed the theft at the American Legion was probative
of who had committed the two bank thefts charged and that all were part of a

single criminal escapade. Cf. United States v. Johnson, 382 F.2d 280, 281 (2d
Cir. 1967).
III.
13

Monks raises some points not already discussed. He challenges evidence that
showed that the van was stolen as being irrelevant to the bank robberies
charged. But those engaged in such activity often use stolen vehicles to avoid
detection through automobile registrations. Similarly, admission of a "slap
hammer" a tool that can be used to pull door locks that was found in Monks's
car was proper in that it tended to tie Monks to the van theft and to negate an
innocent reason for being in Vermont. Monks also complains of the admission
of cleaning equipment stolen with the van and found in Michael Campanile's
apartment building. The equipment was relevant to show that Anthony
Campanile had stolen the van and thus added details to the plan to rob banks in
another state.

14

The court permitted Andrew King, an acquaintance of Monks, to testify that on

two occasions King had participated in exchanges of large amounts of coin
between Monks and another. One was a transfer of approximately $2,000 in
coin in June 1973; this could obviously have been money taken from the
Vermont banks the month before. The other incident was a similar transfer a
few months earlier involving approximately $5,000. Monks argues that
evidence of the $5,000 transaction was prejudicial and should have been
excluded. But having prior experience in fencing large numbers of coins would
be relevant to a charge of stealing them from a bank. The ordinary citizen
would be ill-prepared to dispose of thousands of stolen coins, and thus Monks's
prior special experience was relevant. United States v. Craft, 407 F.2d 1065,
1069-70 (6th Cir. 1969).

15

Finally, Monks also objects to the testimony of Shirley Brown regarding his
contemplated 1972 bank robbery in New Jersey. While the hearsay objection
available to Campanile, discussed above, did not apply to this admission by
Monks, that was not the basis for the latter's objection. Rather, Monks argued
that the statement was of no relevance to the crimes charged and could only
create prejudice against him in the eyes of the jury. The evidence might well
have been excluded. Nonetheless, the error, if any, must be considered in light
of the overwhelming evidence properly admitted. We are convinced that the
Shirley Brown testimony was harmless beyond a reasonable doubt. See United
States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970); United States v.
Chason, 451 F.2d 301, 305 (2d Cir. 1971), cert. denied,405 U.S. 1016, 92 S.Ct.
1291, 31 L.Ed.2d 479 (1972).

16

Judgments affirmed.

Neither of the defendants testified at the trial. They did call several witnesses
for the purpose of showing that the coins allegedly stolen would have been very
heavy and difficult to handle, that the coin wrappers found in Monks' tackle
box might have been obtained from other Vermont banks, and that coins seized
from the jars in the bedroom of the apartment Campanile sublet to his brother
belonged to his brother and his brother's wife

While the parties briefed for us only the issue of standing, we do not, as was
suggested during argument, require a remand for consideration of the merits.
There was a full evidentiary hearing below on the points urged that the warrant
was defective on its face and that the search performed exceeded the scope of
the warrant and we are able to rule on the basis of that record